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NEW CHANGE IN USCIS POLICY ON ACCRUAL OF UNLAWFUL PRESENCE FOR INDIVIDUALS IN F, M AND J STATUS.

Sharlene Sharmila Richards

Sharlene Sharmila Richards

by Sharlene Sharmila Richards, Immigration Lawyer
Email at srichardslaw@aol.com

On May 10th, 2018, USCIS posted a policy memorandum that will in effect change the existing policy on ‘unlawful presence’ for individuals holding F (student), M (vocational student) and J (exchange visitor) status. This new policy will make it easier for those holding student and exchange visitors to accrue what is known as ‘unlawful presence’. Unlawful presence accrues when an individual overstays in the US beyond the date granted at time of their admission. Generally, an individual who has been unlawfully present in the United States for a period of more than 180 days but less than 365 days is barred from re-entry to the United States for a period of three years and individuals who have been unlawfully present in the United States for more than 365 days will be barred from re-entry for a period of 10 years. This unlawful presence bar is triggered when the unlawfully present individual departs the United States. Waivers for the unlawful presence bars can be obtained but to be eligible for these waivers, the individual seeking the waiver must demonstrate extreme hardship to his or her US Citizen and Permanent Resident spouse or parent only. Note that US Citizen and or Permanent Resident children are not included as qualifying relatives for such waivers. In many circumstances, these waivers will be available for international students and exchange visitors who do not have established ties to the United States.
Students and exchange visitors are usually admitted to the United States on what is known as “Duration of Status” (D/S) which means that they are permitted to stay for the length of their educational program. Under current policy, because these individuals who have been admitted for Duration of Status do not have a specific end date to their status, they cannot accrue unlawful presence unless USCIS or the Immigration Judge makes a formal finding of a status violation, whichever comes first. However, under this new rule which will come into effect on August 9th, 2018, unlawful presence for this category of individuals will be calculated as follows:
• F, M and J visa holders who failed to maintain their status before August 9th, 2018 will automatically start accruing unlawful presence on August 9th, 2018 unless such individual has already started accruing unlawful presence on the earliest of any of the following:
–USCIS has denied a request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status during the course of adjudicating for another immigration benefit;
–The day after Form I-94 Arrival/Departure Record, expired, if the individual was admitted with an end date; or
–the day after the immigration judge or in certain cases, the Board of Immigration Appeals ordered the individual excluded, deported or removed (whether or not the decision is appealed).
• F, M and J visa holders who fail to maintain their status on or after August 9th, 2018 will start accruing unlawful presence on or after August 9th, 2018 on the earliest of any of the following:
–the day the individual no longer pursues a course of study or the authorized activity or the day after he or she engages in unauthorized activity;
–the day after completing the course of study or program (including any authorized practical training plus authorized grace period)
–the day after the Form I-94 expired if the individual was admitted with an end date or date certain;
–the day after an Immigration Judge or in certain cases the Board of Immigration Appeals orders him or her excluded, deported or removed (whether or not the decision is appealed)
The effect of this policy on international students and exchange visitors is that these individuals will (after August 9th, 2018 effective date) begin accruing unlawful presence the day after they violated their nonimmigrant status rather than before a final determination has been made by USCIS or an Immigration Judge that there was a status violation. A status violation can occur for example if the student is not pursuing a full course of study or has unwittingly engaged in unauthorized activity such as working without work authorization; etc. The individual may not know that a status violation has occurred and would start to accrue unlawful presence from that date. In addition, this rule also applies to the dependent spouse and minor children of the principal who committed the alleged status violation. There are also questions as to how the individual would go about challenging the status violation allegations many years later and being unaware in the first place that they have been accruing unlawful until informed that they have been doing so and that the re-entry bar applies to them. Unlawful presence should not be triggered unless there is clear notice that remaining beyond an expiration date of authorized stay has occurred and not when a status violation has occurred.
My Bio
Sharlene Sharmila Richards is a licensed Immigration Lawyer practicing in Houston, Texas. She is a member of the American Immigration Lawyers Association. She was admitted to the New York State Bar in 2000 and is a member of the 5th Circuit Court of Appeals and a member of the US Supreme Court. If you require advice or assistance, you may contact her at telephone number 713-623-8088 or by email at srichardslaw@aol.com to schedule a free consultation to discuss your case.
Disclaimer: Any advice provided in this article is general in nature and not intended to constitute legal advice for any specific case. Please consult with an immigration lawyer about the specific circumstances of your case.


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